article 21 revised.prn - Scalia Law School | Scalia Law School · articulated in the Havana Convention on the Law of Treaties in 1928,10 it provided for three levels of reciprocal

1Professor of Law, George Mason University, School of Law; Director, International Business Law Program& Co-Director, J.M. Buchanan Center for Political Economy, Program in Economics and the Law.

2Legal Writing Fellow, George Mason University School of Law.

1

Francesco Parisi1 – Catherine Ševc4enko2

TREATY RESERVATIONS AND THE ECONOMICS OF ARTICLE 21 (1) OF THE VIENNA CONVENTION

History of Treaty Reservations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4Pre-World War I: Unanimity Rule . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4Inter-War Period: Pan-American Rule . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5Post World War II: International Court of Justice Advisory Opinion . . . . . . . . . . . . . . . . 6Post World War II: International Law Commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

The Vienna Convention on the Law of Treaties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13The Vienna Convention Rules on the Issue of Reservations . . . . . . . . . . . . . . . . . . . . . . 13

Treaty Reservations and the Economics of Art. 21 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16Prisoner’s Dilemma, Reciprocity and Incentive Alignment . . . . . . . . . . . . . . . . . . . . . . 18Article 21 and the Game-Theory of Reciprocity in Symmetric Situations . . . . . . . . . . . 19

Treaty Reservations in Practice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22ICJ and the Enforcement of Reciprocity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Norwegian Loan Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23UK/French Continental Shelf Arbitration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

The Limits of Reciprocity and Emerging Problems in Treaty Reservations . . . . . . . . . . . . . . . 27Asymmetric Reservations and the Concept of “Package Deal” . . . . . . . . . . . . . . . . . . . . 29

“Package Deal” under Articles 309 and 310 the UN Convention on the Law of theSea . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

Limitations on Reciprocity: Human Rights Conventions . . . . . . . . . . . . . . . . . . . . . . . . 36Searching for a Solution: Curbing Reservations Without Reciprocity or Voluntary

Unanimity Rule . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39Comment 24 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40Rejection of a Revised Vienna Convention . . . . . . . . . . . . . . . . . . . . . . . . . . . 41

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

3Vienna Convention on the Law of Treaties, May 23, 1969, 1155 U.N.T.S. 331 [hereinafter ViennaConvention]. The United States is not a party to the Vienna Convention, however the international community generallyaccepts the Convention as an authoritative codification of treaty law. See Daniel N. Hylton, Note, Default Breakdown:The Vienna Convention on the Law of Treaties: Inadequate Framework on Reservations, 27 VAND. J. TRANSNAT’L L.419, n. 2 (1994).

4See e.g. D.W. Grieg, Reciprocity, Proportionality, and the Law of Treaties, 34 VA. J. INT’L L. 295, 299-300(1994).

5John King Gamble, Reservations to Multilateral Treaties: a Macroscopic View of State Practice, 74 A.J.I.L.372 (1980).

6 The precise language of the treaty is as follows: 1. A reservation established with regard to another party inaccordance with articles 19, 20 and 23:(a) modifies for the reserving State in its relations with that other party the provisions of the treaty to which thereservation relates to the extent of the reservation; and(b) modifies these provisions to the same extent for that other party in its relations with the reserving State. ViennaConvention on the Law of Treaties, Art. 21, concluded May 23, 1969, entered into force Jan. 27, 1980, 1155 U.N.T.S.331.

2

Introduction

The study of the use of reservation in multi-lateral treaties reveals two striking phenomena:

1) the law of reservations, enshrined in Articles 19-21 of the Vienna Convention on the Law of

Treaties3, favors the reserving state4 and 2) the number of reservations attached to international

treaties is relatively low in spite of that natural advantage.5 This paper posits that Article 21 (1) of

the Vienna Convention is a good place to search for an explanation. This provision establishes the

concept that reservations are reciprocal: between a reserving state and a state that objects to the

reservation, that provision of the treaty will not be in force.6 Therefore if a state wants to exempt

itself from a treaty obligation, it must be willing to let other nations escape that same burden as well.

Game Theory sheds light on understanding the efficacy, and limits, of Article 21 in

preserving treaty obligations. After a treaty has been signed, states have an opportunity to attach

reservations to it before ratification. Absent Article 21, the traditional prisoner’s dilemma paradigm

illustrates that a state will always act in its best interest (reserve), thereby prompting other states to

7The differing nature of contractual and normative treaties was first hinted at in the Genocide ConventionAdvisory Opinion that set the stage for the Vienna Convention’s approach to reservations. The International Court ofJustice (ICJ) noted the inherent contradiction between a liberal reservations regime, which would make it easy for statesto ratify the Convention, and the need to preserve a strong global condemnation of genocide. For a complete discussion,see Section XX

3

do the same, resulting in a sub-optimal result for both of them: a fragmented treaty with ambiguous

obligations. If a state knows, however, that the mechanism of reciprocity will make its sought-after

advantage automatically available to others, then, under most circumstances, the possibility for

achieving post- negotiation advantages are precluded and a state will not attach reservations to the

treaty.

Article 21 reciprocity only provides a solution to the Prisoner’s Dilemma game when both

states enter into the negotiations in symmetrical positions and it is unclear how the treaty will

regulate their future relationship, as, for example, with an extradition treaty, in which each state does

not know whether it will be requesting or surrendering a fugitive. The dominant strategy for states

in situations in which they enter with asymmetric positions and the costs and benefits of the treaty

are clear in advance, will be to attach reservations to preserve national interests as much as possible.

Therefore erosion of the integrity of the treaty will be inevitable unless the parties explicitly preclude

reservations as part of the treaty itself. Finally, the observation that reservations are fairly rare does

not hold true for human right treaties. The equalizing mechanism of reciprocity cannot function in

these instances, as such conventions are not contractual agreements among states but unilateral

declarations of a state’s intentions concerning the treatment of its own citizens.7 In this scenario, the

players have an irreconcilable clash of values and there is no unique equilibrium point. A nation will

not accommodate another position at the cost of its own national interest. Furthermore, reciprocity

does not offer a way out of the dilemma. If the Taliban attached a reservation to the Convention on

8The description of the history of treaty reservations is based on the classic works outlining this developmentfrom the 19th century to the adoption of the Vienna Convention on Treaties. Specifically it draws on IAN SINCLAIR, THEVIENNA CONVENTION ON THE LAW OF TREATIES (2d ed. 1984) and SHABTAI ROSENNE, DEVELOPMENTS IN THE LAW OFTREATIES 1945 - 1986 (1989).

4

Elimination of All Forms of Discrimination Against Women allowing them to deny education to

girls, it would hardly benefit the United States to have the same “right.” The benefits of a human

rights treaty are not tangible enough to motivate a state to give up its right to attach reservations and

the political cost for compromise on such issues may be too high for governments to pay. Rather,

the search must continue for an effective incentive for states to adhere to their obligations to respect

the human rights of their populations.

History of Treaty Reservations8

Pre-World War I: Unanimity Rule

Until the late nineteenth century, accession to, and ratification of, multilateral agreements

was an all or nothing proposition. Such approach was justified by the fact that ratifying states had

an opportunity to negotiate specific treaty provisions before signing a treaty, rendering ex post

departures from such agreements prima facie suspect. As a result, if a state had a position on a

particular provision which was not adopted, it had the limited choice of accepting that aspect of the

treaty, in spite of national concerns, or not being a party to the entire agreement. In this way

unanimity was preserved, and any treaty that did come into force had the clear backing of its

constituent parties, laying a strong foundation on which compliance could be built. Although this

approach first began to change in the late nineteenth century with the series of conventions, starting

with the International Sanitary Convention, all of the signing parties had to accept, at least tacitly,

92 ROSENNE, THE PROGRESSIVE CODIFICATION OF INTERNATIONAL LAW, 25-7 (1972).

10Catherine Logan Piper, Note, Reservations to Multilateral Treaties: The Goal of Universality, 71 Iowa L. Rev.295, 322 n.121 (1985) (quoting Article 6 of the Havana Convention). See also Andres E. Montalvo, Reservations to theAmerican Convention on Human Rights: A New Approach, 16 AM. U. INT’L L. REV. 269, 274-75 (2001).

5

the reservation before it could be considered valid. Therefore the Netherlands, as the depository

government, rejected a reservation made by Great Britain to the 1899 Geneva Convention on

Maritime Warfare, firmly blocking an attempt by one country to insist on both participation in the

treaty and recognition of its reservation.

Although this practice became increasingly unworkable in light of the increased international

cooperation which followed the First World War and establishment of the League of Nations, the

leading European nations adhered to this unanimity principle , even forbidding states that signed

onto an international convention after its initial entry into force to attach any reservation of any kind.9

As European nations dominated the world stage, this practice continued until after the Second World

War.

Inter-War Period: Pan-American Rule

While the European powers continued their insistence on unanimous consent to treaty

provisions, a different approach grew up in Latin America. Known as the Pan-American Rule,

articulated in the Havana Convention on the Law of Treaties in 1928,10 it provided for three levels

of reciprocal rights and obligations between signatory states. Between states that did not file

reservations to treaty language, the treaty applied as written. Between a reserving state and a state

that accepted the limitation, the treaty applied in its modified form. Finally, if a state signed onto

the treaty with a reservation after the treaty had entered into force, the agreement would not be in

11Catherine Logan Piper, Note, Reservations to Multilateral Treaties: The Goal of Universality, 71 Iowa L. Rev.295, 308 (1985).

12 GAOR, 5th Session, annexes, a.i. 56 (1950) demonstrating that the point of departure for discussion wasLeague of Nations decisions and the Harvard Draft, namely articulation of the unanimity principle, as cited in SHABTAIROSENNE, DEVELOPMENTS IN THE LAW OF TREATIES 1945 - 1986, 425 (1989); Resolution 478 (V) of 16 November 1950.

6

force between it and any other signatory state that did not accept the reservation. This latter provision

represented a significant departure from earlier refusal to allow a latecomer state any flexibility. In

essence, the Pan-American rule widened the scope of engagement in a multilateral treaty by allowing

for a variety of related bilateral sub-agreements under the treaty’s general umbrella.11 The

international community therefore had two methods for dealing with reservations leading into the

post-War period.

Post World War II: International Court of Justice Advisory Opinion

These two different approaches co-existed until the post-war period, when, in the aftermath

of the horrors of the Holocaust, the members of the United Nations negotiated the Convention for

the Prevention of Genocide. Although the treaty was meant to stand as an articulation of humanity’s

universal condemnation of genocide, individual states attached reservations to their ratifications of

the treaty itself. The Secretary General was then faced with the dilemma of whether to count

signatures with reservations towards those needed for the Convention to enter into force.

Accordingly, the General Assembly called upon both the International Court of Justice and the

International Law Commission for guidance on this matter.12

The foundation for the Vienna Convention’s approach to reservations can be found in the

International Court of Justice Advisory Opinion on the Genocide Convention, issued in 1951. In that

landmark decision, the Court had to balance the need for universal condemnation of genocide with

13See Report of the International Law Commission on the work of its forty-ninth session 12 May-18 July U.N.GAOR, 52nd Sess., Supp. No. 10, U.N. Doc. A/52/10 (1997).

14Reservations to Convention on the Prevention and Punishment of the Crime of Genocide, 1951 I.C.J. 15(Advisory Opinion of May 28).

15Reservations to Convention on the Prevention and Punishment of the Crime of Genocide, 1951 I.C.J. 15, 21(Advisory Opinion of May 28).


7

the mandate to preserve the integrity of the treaty language itself. On the one hand, according states

flexibility in accepting the terms of the treaty would promote ratification, but this would contradict

both past practice and run the risk of casting the shadow of ambiguity over the treaty language. The

ICJ wrestled with the dilemma, which continues to vex states today,13 setting the framework for

negotiating multilateral treaties in the expanded international community that emerged from the

wreckage of the War.

In a 7-5 decision, the Court addressed the following two issues at the request of the U.N.

General Assembly:

• Can the reserving State be regarded as being a party to the Convention while still maintainingits reservation if the reservation is objected to by one or more of the parties to the Conventionbut not by others?

• If the answer to Question I is in the affirmative, what is the effect of the reservation asbetween the reserving State and:(A) The parties which object to the reservation?(B) Those which accept it?14

The majority started its opinion by restating the basic premises of treaty law, namely that a

state cannot be bound without its consent, and therefore another state’s reservation to a provision of

a treaty cannot be effective against other states without their consent.15 From this basic rule, the

Court then drew the conclusion that, because the terms of a multilateral convention are freely

concluded, one state cannot frustrate the purpose of the convention through unilateral action.16

17Reservations to Convention on the Prevention and Punishment of the Crime of Genocide, 1951 I.C.J. 15, 21(Advisory Opinion of May 28). This theme of contract vs normative treaty has gained greater prominence in the pastdecades as the number of human rights conventions has increased. The trade off between flexibility in allowingreservations and integrity of the treaty language as negotiated has been questioned as states have used reservations anddeclarations essentially to undermine the intent of the treaty itself, at least in some cases.




8

From these premises flow the traditional rule that a state cannot attach a reservation to a treaty unless

all parties agree to it.17

Acknowledging that this framework works well for contract law, and, by extension a treaty

that operates as a contract between nations, the Court continued that in this instance, one must look

to the special nature and circumstances of the Genocide Convention to understand fully the best

approach to the question of reservations.18 Because this Convention was intended to be universal

in nature, the Court felt that more flexibility was needed in order to allow full participation by

member states. Furthermore, in order to compensate for the fact that each provision of the

Convention was adopted by majority vote, a broad reservations mechanism was needed in order to

keep States whose views were voted down in the drafting process from opting out of the Convention

completely.19 The Court also distanced itself from the theory that a reservation requires at least the

tacit assent of all other parties, on the grounds that the absolute integrity of a convention is not a rule

of international law. 20

Although adding some flexibility, the ICJ tried to avoid opening the floodgates for

reservations. The ICJ stressed that the Convention does not deal with state private interests, but

rather enshrines a universal principal against the destruction of a particular group, and therefore



23Reservations to Convention on the Prevention and Punishment of the Crime of Genocide, 1951 I.C.J. 15, 23(Advisory Opinion of May 28). In so doing, the ICJ eliminated reciprocity, that is the mutual interest among states toadhere to international norms, as a mechanism for promoting adherence to the Convention. Rather, the Court tried toshort circuit national interest as an excuse for not ratifying the convention by finding that it functioned on a higher plane,enshrining principles that should not be undermined.



9

countries should not stray from the black letter terms of the Convention, as genocide “shocks the

conscience of mankind.”21 This conclusion was supported by the fact that the General Assembly had

not created a mechanism for reservations, although the debate suggested that it might “be possible

to allow certain limited reservations.”22

The Court resolved this apparent contradiction between the desire for universal participation

and the need to establish a strong international norm against genocide by finding that states to the

Genocide Convention do not have “any interests of their own” but rather are united in “the

accomplishment of those high purposes which are the raison d’etre of the convention.”23 In an

attempt to preserve the moral authority of the Convention itself, 24 the court found that any

reservation must be compatible with the object and purpose of the Convention.25 The Court rejected

the view that sovereignty entitled a state to make any reservation it wanted, as this would undermine

purpose of the convention.

In sum, the Court opened the door to the solution that was incorporated into the Vienna

Convention on Treaties some fifteen years later. By recognizing that some form of reservation was

required, but attempting to limit its scope, the Court created the possibility of “subtreaties” because


27Reservations to Convention on the Prevention and Punishment of the Crime of Genocide, 1951 I.C.J. 15, 27(Advisory Opinion of May 28). The ICJ dodged the difficult question of deciding who would have authority to determineif a reservation were compatible with the object of the treaty or not.



10

each state would judge for itself whether a reservation was compatible with the purpose of the

Convention, and, based on its conclusion, either consider the treaty in force between itself and the

reserving state, or not.26 This regime tips the balance in favor of the reserving state, however. First

of all, the ICJ noted that it must be “clearly assumed” that a potential objecting state would make

every effort to find the reservation acceptable, since it would be “desirous of preserving intact at least

what is essential to the object of the Convention.”27 As a result, the Court ventured the hope that any

divergence of views might either not be relevant in the big picture, that the States might enter into

some dispute resolution process, or that there would be “an understanding between that State and

the reserving States [will allow] the convention to enter into force between them, except for the

clauses affected by the reservation.”28

What the legal ramifications of that arrangement would be, the Court did not attempt to

figure out: “while it is universally recognized that the consent of other governments concerned must

be sought before they can be bound by the terms of a reservation, there has not been unanimity either

as to the procedure to be followed by a depositary in obtaining the necessary consent or as to the

legal effect of a State’s objecting to a reservation.”29 Mentioning the Pan-American system, the

Court merely notes that the European approach is not the only option and that a case by case analysis


31The General Assembly asked the ILC to “study the question of reservations to multilateral conventions bothfrom the point of view of codification and from that of progressive development (resolution 478 (V) of 16 November1950).

32Conclusion of ILC (1951) cited in SHABTAI ROSENNE, DEVELOPMENTS IN THE LAW OF TREATIES 1945 - 1986,428-29 (1989).

11

of how to handle reservations would be the most prudent approach.30 In spite of these gaps,

however, the ICJ shifted the grounds of debate and laid the foundation, shaky as it might be, for

Article 21 of the Vienna Convention.

Post World War II: International Law Commission

At the same time that the General Assembly asked the ICJ to offer its guidance on the

question of reservations, it also turned to the International Law Commission for its expertise.31 Even

after the Court rendered its opinion, the ILC input still was relevant because the Court, relying on

the abstract nature of an advisory opinion, left many questions unanswered about how a regime

would work that did not require unanimous acceptance of reservations. The ILC in fact, came to

the opposite conclusion of the Advisory Opinion. It advocated the traditional model, calling for the

Secretary General to notify all other States that either are, or are entitled to become, parties to the

Convention when any State submitted a reservation. If any other State objected within a certain

amount of time, then the reservation would have to be withdrawn or the reserving state could not

become a party to the treaty.32 In short, the ILC recommended retention of the European unanimity

rule.

33Resolution 598 (VI) of 12 January 1952.

34Resolution 1452 (XVI) (1959).

35SHABTAI ROSENNE, DEVELOPMENTS IN THE LAW OF TREATIES 1945 - 1986, 434 (1989).

36 First Report of the Special Rapporteur, Sir Humphrey Waldock, (14th session of the ILC (1962))- U.N. Doc.A/CN.4/144 and Add.1 (in Ybk, 1962, vII)

12

The General Assembly was thereby faced with the task of reconciling these two opposing

recommendations. It passed an initial resolution dodging the problem by instructing the Secretary

General simply to inform all member states of any reservations to treaties of which he was the

depository and allow them to draw any legal conclusions from the reserving state’s statement.33 This

arrangement lasted until 1959, when India demanded clarification of the legal status of a reservation

it had appended to a 1948 Convention. It was at that point that the General Assembly was forced

to take a clearer stance on the question of reservations and called upon the Secretary General to

collect information on practices concerning reservations from different regions of the world and

submit the information to the ILC for its further consideration.34 In this way, the General Assembly

signaled that the unanimity rule was a thing of the past. It had become increasingly clear that this

kind of rigid system would no longer function in a world where many states were to have a say in

the development of world affairs. It is notable that the impasse between the ICJ Advisory Opinion

and the ILC was broken based on political, rather than legal, considerations. The General

Assembly’s resolution thus ushered in the end of the dominance of the European states on the

codification of international law.35 Three years later, Special Rapporteur Sir Humphrey Waldock

presented the ILC’s new thinking on reservations, ideas that another six years later were to become

articles 19 - 23 in the Vienna Convention itself.36

37IAN SINCLAIR, THE VIENNA CONVENTION ON THE LAW OF TREATIES 12-13 (2d ed. 1984).

13

The Vienna Convention on the Law of Treaties

The Vienna Convention on the Law of Treaties was made available for signature in 1969

and came into force in 1980, culminating an effort which began in 1949. The purpose of the

Convention was to articulate the framework for treaty-making, codifying practice on how treaties

should be concluded, enter into force, applied and interpreted, as well as the procedural rules for

treaty administration. It represents a comprehensive set of principles and rules governing significant

aspects of treaty law.

The Vienna Convention Rules on the Issue of Reservations

The Vienna Convention itself represents a combination of codification of customary

international law and creation of new legal norms through progressive development, although the

line between the two is not necessarily clear. The Articles concerning reservations, Articles 19 -23,

are fairly clearly a result of progressive development, rather than codification, reflecting the troubled

history of the issue of reservations and the gradual move away from unanimous acceptance of

reservations as the ICJ articulated in the Genocide Convention.37

The Vienna Convention defines a reservation as “a unilateral statement, however phrased or

named, made by a State when signing, ratifying, accepting, approving or acceding to a treaty,

whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their

38The Vienna Convention on the Law of Treaties, May 23, 1969, Art. 2(1)(d), For a drafting history of thedefinition of reservation, see Alain Pellet, Special Rapporteur, Third Report on Reservations to Treaties, UN Doc.A/CN.4/491/Add. 1 (1998).

39The Vienna Convention on the Law of Treaties, May 23, 1969, art. 19, 1155 U.N.T.S. 331.

14

application to that State.”38 Article 19 allows states to include reservations in their acceptance of

treaty obligations, unless the treaty itself expressly forbids reservations, or the reservation is

incompatible with the object and purpose of the treaty, echoing the Genocide Convention language.39

Article 20 outlines the circumstances under which reservations must be accepted by the other parties;

otherwise if a state does not object to a reservation from another state within a set amount of time,

its silence is construed as tacit acceptance. An objection to a reservation does not, however, preclude

entry into force between the two states. Rather, Article 21 allows for the states to tailor the relations

between them through the mechanism of reciprocity. If a state does not object to a reservation, it

modifies the treaty relations between the two states according to the scope of the reservation; the

limitation imposed by the reserving state applies to both parties to an equal extent. If a state objects

to the reservation, however, then the entire provision does not apply between the two parties; the

objecting state may also declare the entire treaty not in force between the two countries.

In light of the relatively liberal approach to reservations in the Vienna Convention, one might

think that the number of reservations appended to multilateral treaties would be relatively high, but

in fact few States actually do attach reservations to their accession to a treaty. It could be argued

that, in balance, the integrity of the treaty is more important than the ability to tailor the agreement

to a state’s particular point of view through the use of reservations. We suggest that the reciprocity

mechanism of Article 21 (1) plays an important role in limiting the number of reservations. If one

State can exempt itself from a particular provision, and thereby not enjoy its benefits, the another

40John King Gamble, Reservations to Multilateral Treaties: a Macroscopic View of State Practice, 74 A.J.I.L.372, 378 (1980)

41John King Gamble, Reservations to Multilateral Treaties: a Macroscopic View of State Practice, 74 A.J.I.L.372, 379 (1980).

42John King Gamble, Reservations to Multilateral Treaties: a Macroscopic View of State Practice, 74 A.J.I.L.372, 379 (1980).

43See Harvard’s 1932 Research Project in International Law, calling diplomatic relations the “normalfunctioning of states” and pointing to reciprocity as the means by which such functioning is made possible. Diplomatic

(continued...)

15

State may be tempted to do the same. If a treaty gets too burdened with reservations, in essence

becoming a network of bilateral treaty obligations, States will simply back away from the accord

altogether. Although the percentage of treaties with reservations rose after World War II, when

reservations became more widely accepted, the high point, as of 1980, was only six percent of

treaties in force.40 This means that a state makes, on average, one reservation to a multilateral treaty

every ten years.41 In all, 85 percent of multilateral treaties in 1980 had no reservations and only 61

treaties had more than three.42

The fact that there has been no explosion of the number of reservations to treaties supports

the intuition that the threat of a reservation may be useful as a bargaining chip in negotiations. In

the end, however, a reservation is a double-edge sword, as other parties to the treaty are also exempt

from treaty obligations to the extent of the reservation, meaning that states in the end may hesitate

to append a reservation.

The new regime in the Vienna Convention was designed to introduce necessary flexibility

into treaty making given the rise of multinational agreements in the 20th century, and the increased

number of nations involved in such agreements. To achieve this goal, the Convention drew on the

concept of reciprocity, one of the basic principles of international law that makes diplomatic

relations possible.43 Reciprocity is the foundation of diplomatic immunity, the laws of war, and as

43(...continued)Privileges and Immunities, 26 Am. J. Int’l L. 15, 26 (Supp. 1932).

44D.W. Grieg, Reciprocity, Proportionality, and the Law of Treaties, 34 VA. J. INT’L L. 295, 299-300 (1994).

45Although discussion of them is beyond the scope of this paper, chief concerns includes the creation of apatchwork of differing relations between states within the same general framework of a treaty; difficulties in settingstandards for how to determine if a reservation is contrary to the purpose of a treaty, and therefore forbidden. Anotherdifficulty arises from the fact that states should not be able to use reservations to treaties to circumvent obligations thatthey have in any case under customary international law. Arguments are also made that even the principle of reciprocitycannot counterbalance the fact that an objecting state cannot restore a provision to which another state has included areservation; the most drastic “defensive” action that a state can take is to declare the treaty not in force between it andthe reserving state, a step that most nations are reluctant to take.

46 Standards of compliance in treaty implementation also rely heavily on the subsequent practice of states. Thepost-contractual behavior of states can shape and modify the content of an already finalized agreement, or even abrogatea treaty.

16

a mechanism for dealing with breaches of treaty provisions.44 Although Article 21 also produced a

significant number of complications,45 its principle of reciprocity contributes significantly to

resolving the inherent tension between treaty flexibility and integrity that the ICJ first identified in

its Genocide Advisory Opinion. As explained in the section below, the Prisoner’s Dilemma game

illustrates how reciprocity provides a natural brake to the appendage of reservations to multilateral

contract-type treaties.

Treaty Reservations and the Economics of Art. 21

Game theory is a useful tool for the understanding of the effects of reciprocity on States’

reservations to treaties. Signing a treaty gives a state the option to be bound by the treaty but until

ratification, the state has no enforceable obligation to be bound by the agreement. Absent effective

contractual constraints in the pre-ratification phase, states have a clear opportunity for strategic

behavior and therefore would rationally introduce unilateral reservations at the time of ratification.46

Left unconstrained, this strategy would dominate in equilibrium. To cope with this reality, basic

47The specific language is as follows: “Legal Effects of Reservations and of Objections to Reservations: Areservation established with regard to another party . . . modifies those provisions to the same extent for that other partyin its relations with the reserving state.”

48In the classic Prisoner’s Dilemma scenario, two perpetrators are arrested by the police and held in isolationfrom each other. If neither confesses, the D.A. will have to cut a favorable plea bargain in which each will serve one yearin prison. If one confesses and the other does not, the silent one will receive a ten year sentence and the confessor willgo free. If both confess, then both will receive a five year sentence. Although it would be in their interest to keep quiet,neither can trust the other not to try to opt for the best deal by confessing and therefore they will inevitably end up withfive year sentences, a less than optimal outcome for both. Eric Rasmusen, Games and Information: An Introduction toGame Theory, 2nd ed. 17-19 (1994)

17

norms of reciprocity have emerged as international law. In particular, Art. 21(1)b of the 1969 Vienna

Convention creates a mirror-image mechanism to counteract unilateral reservations.47 The effects

of this automatic reciprocity mechanism are similar to a tit-for-tat strategy with the added advantage

that states do not need to retaliate actively: whenever one state modifies a treaty unilaterally in its

favor, the reflexive result will be a de facto across-the-board introduction of an identical reservation

against the reserving state. In the following section we will illustrate how, by imposing a symmetry

constraint on the states’ choices, this rule offers a possible solution to Prisoners’ Dilemma

problems48.

Prisoner’s Dilemma, Reciprocity and Incentive Alignment

Given a perfect alignment of incentives, no state would want to introduce unilateral

reservations, nor would it have a reason to fear that other signatory states would introduce them. In

such an ideal world, stable treaty relationships of mutual cooperation would preclude the need for

international treaty reservations and the equilibrium would converge towards mutually desirable

outcomes. Because strategies that maximize individual states’ expected payoffs would also

maximize the interest of other states, no player would have any reason to challenge the emerging

equilibrium.

49 The perfect alignment of individual interests, however, rarely occurs in real life situations. In the absence ofproper enforcement mechanisms, even a Pareto improving exchange opportunity creates a temptation for shirking andex post opportunism. When shirking and post-contractual opportunism becomes a dominant strategy for one or bothplayers, the exploitation of opportunities for mutual exchange becomes difficult or unobtainable (Kronman, 1985).

18

The perfect alignment of states’ incentives can be induced either (i) endogenously, or (ii)

exogenously. In the former case, signatory states naturally find themselves in such a heavenly

relationship.49 The latter case, exogenous constraints induce the parties to behave “as if” their

incentives were perfectly aligned, thereby overcoming any underlying conflict of interests.

The Article 21 (1) reciprocity constraint is an important example of such exogenous force

because it shapes states’ strategic choices. Although each player can cause the joint enterprise of

the international agreement to fail by unilaterally defecting (i.e., introducing unilateral reservations),

no state can, in fact, obtain the unilateral reservation (temptation) payoff: withholding complete

ratification of the treaty triggers a mirror-image reduction in the other states’ implementation of the

treaty with respect to the reserving state. By the same token, no state can unilaterally determine the

success of the treaty (because the ratification by other states is out of the control of any single

signatory state), but each individual state can determine its failure.

Under most circumstances, this reciprocity mechanism prevents unilateral defection and free-

riding strategies from dominating in equilibrium because states can only reduce the anticipated

benefit of the treaty for other states, and, by doing so, for themselves. In short, any adjustment to

the negotiated agreement invariably results in a net loss of benefit, e.g. loss of integrity in the treaty’s

terms, thereby bolstering the likelihood that a cooperative solution will prevail. In the end, the

unilateral veto effect of the reciprocity rule only creates an illusion that the agreement is fragile; in

reality, it makes the negotiated cooperative solution more robust.

19

However, we should point to the important fact that, while the principle of reciprocity of Art.

21 (1) solves conflict situations characterized by a Prisoners’ Dilemma structure (in both symmetric

and asymmetric cases), reciprocity is on its own incapable of correcting other strategic problems.

When a conflict occurs along the diagonal possibilities of the game (such that the obtainable

equilibria are already characterized by symmetric strategies), a reciprocity constraint will not alter

the dynamic of treaty ratification. Reciprocity constraints are effective only if there are incentives

for unilateral defection. As will be discussed below, reciprocity will be ineffective in other strategic

situations (e.g., in asymmetric cooperation games, Battle of the Sexes games, and pure conflict

situations).

Article 21 and the Game-Theory of Reciprocity in Symmetric Situations

Reciprocity constrains states’ action. The well-known Prisoner’s Dilemma game illustrates

in interesting ways how Article 21 (1) can influence states’ incentives related to treaty ratification

because it aptly depicts the ratification problem faced by sovereign states. Unlike the atomistic world

of non-strategic economics, the ability to introduce unilateral reservations may produce suboptimal

equilibria. Game theory teaches that such strategic problems result when players are only allowed

to choose strategies, but cannot single-handedly determine outcomes, as in our situation when states

can only choose their level of ratification and cannot unilaterally compel full ratification by the other

states. If there were no reciprocity constraints, each state would to try to gain national advantage

by accessing the off-diagonal unilateral reservation payoffs through introducing unilateral

reservations , thereby submitting to the temptation to defect from optimal strategies. The combined

50 For an insightful discussion, see Buchanan (1975).

51 For a similar argument relying on tit-for-tat strategies in iterated games, see Axelrod (1981) and (1984).

20

effect of such unilateral strategies would generate outcomes that are Pareto inferior for all states, as

in the classic Prisoner’s dilemma setting.50

By eliminating access to asymmetric outcomes of the game, Article 21 (1) induces states to

choose ratification strategies that take into account the reality of reciprocity, namely that of the

reward for unilateral defection is unobtainable. As a result, no rational state would employ defection

strategies (unilateral reservations) in the hope of obtaining higher payoffs, nor would it select

reservation strategies as a merely defensive tactic. Automatic reciprocity mechanisms thus guarantee

the destabilization of mutual defection strategies and the shift toward optimizing cooperation in the

ratification of international treaties.51

This mechanism of automatic reciprocity produces effects that are similar to a tit-for-tat

strategy without any need for active retaliation by other states. Whenever one state makes a unilateral

modification in its own favor, it will be as if all the other states had introduced an identical

reservation against the reserving state. This rule imposes a symmetry constraint on the parties’

choices and offers a possible solution to Prisoners’ Dilemma problems. In Figure (1) the equilibrium

obtained in the absence of reciprocity (left) is contrasted with the outcome induced by a reciprocity

constraint (right).

21

Figure (1): Reciprocity Constraint for a Treaty Ratification Problem with Symmetric States

For the sake of graphical clarity, Figure (1) depicts the simplest scenario of two states faced

with a ratification problem, although the results also hold in the more complex case of multilateral

treaties, described in the present paper. In Figure (1) we consider the choices of two states faced with

a treaty ratification problem. State 1 (the column-mover) chooses between two strategies (strategy

I and II) each yielding the payoffs marked on the right side of each box. Likewise, State 2 (the row-

mover) chooses between strategy I and II, yielding the payoffs marked on the left side of each box.

For both states, strategies I and II respectively represent a choice of full ratification and a choice of

unilateral reservation.

As shown by the payoff matrix on the left, in the absence of a reciprocity constraint similar

to the one introduced by Article 21(1) of the Vienna Convention, each state would be better off if

52The Nash equilibrium is reached when no player can improve his position as long as the other players adhereto the strategy they have adopted.

22

able to obtain the ratification of the other state, while introducing a unilateral reservation itself. Thus,

as shown by the direction of the arrows, the Nash strategies of the parties tend to produce the

outcome that both states introduce reservations, which in turn yields the lowest aggregate payoff for

the two states. Indeed, both states face dominant strategies of unilateral reservation (i.e., reservation

amounts to an unconditionally-best response to the other state’s action). Similar to a Prisoner’s

dilemma, this yields a single Nash equilibrium52 of bilateral defection (in our context, the

equilibrium would be characterized by mutual reservations of all states).

The payoff matrix on the right shows the effect of Article 21(1) on the optimal strategies of

the parties. By eliminating the accessibility of asymmetric outcomes, reciprocity compels the parties

to take into account the effect of the opponent’s reciprocal choice when selecting their optimal

strategy. In this way, the dominant strategy of attaching reservations, obtained in the absence of

reciprocity, is transformed into a dominant strategy of full ratification, producing optimal levels of

treaty ratification for the signatory States.

Treaty Reservations in Practice

ICJ and the Enforcement of Reciprocity

The following cases illustrate how the principle of reciprocity has worked in practice and

demonstrate how, in cases of uncertainty, reserving states have in fact been disadvantaged by putting

limitations on their adherence to a treaty.

53Certain Norwegian Loans (Fr. v. Nor.), 1957 I.C.J 9 (July 6).

54Certain Norwegian Loans (Fr. v. Nor.), 1957 I.C.J 9, 11 (July 6).

55Certain Norwegian Loans (Fr. v. Nor.), 1957 I.C.J 9, 23 (July 6). It is worth noting that the validity of thereservation itself was not in doubt, although it did aim to circumscribe the jurisdiction of the Court and therefore perhapsenter the zone of the “essential function” of the Statute creating the court, as envisioned in the Genocide AdvisoryOpinion. Certain Norwegian Loans (Fr. v. Nor.), 1957 I.C.J 9, 27 (July 6).


23

Norwegian Loan Case

The International Court of Justice in considering cases related to reservations has raised the

price of attaching one to a treaty, and thus perhaps discouraged their use. The concept of reciprocity

has played an important role in this, as the Court has been generous in allowing others states to take

advantage of an exception insisted upon by a particular signatory. For instance, in Norwegian Loans,

Norway was able to use France’s reservation against it to forestall international adjudication of a loan

repayment dispute.53 In that instance, the Court found that it did not have jurisdiction to hear dispute

between France and Norway over repayment of loans that Norwegian banks made to France.54

Both France and Norway had submitted to the jurisdiction of the International Court of

Justice, but with differing declarations. Specifically, the French added the following language to its

declaration: “This declaration does not apply to differences relating to matters which are essentially

within the national jurisdiction as understood by the Government of the French Republic.”55 As

Norway took the position that the resolution of the loan repayment dispute was a question governed

by municipal, not international, law,56 it sought to avail itself of the French reservation blocking the

Court from considering questions within national jurisdiction. Accordingly, it insisted that, although

it “did not insert any such reservation in its own Declaration, . . . it has the right to rely upon the




60Interhandel, 1959 I.C.J. 6 (Mar.21).61Interhandel, 1959 I.C.J. 6, 23 (July 6).

24

restrictions placed by France upon her own undertakings.”57 The Court agreed that the basis of its

jurisdiction was the voluntary, reciprocal submission of the parties, and so “ consequently, the

common will of the Parties, which is the basis of the Court's jurisdiction, exists within these

narrower limits indicated by the French reservation.”58 Accordingly, Norway, taking advantage of

France’s reservation, could shield from the court cases involving issues which, in its view, were

under the purview of its national jurisdiction, although it originally has not restricted its participation

in ICJ proceedings in such a manner.59

The International Court of Justice set down the guiding principle for handling reservations

to submission to the Court’s jurisdiction in Interhandel, a dispute between the United States and

Switzerland over unfreezing Swiss assets after the Second World War.60 The Court found that

“Declarations accepting the compulsory jurisdiction of the Court enable a Party to invoke a

reservation to that acceptance which it has not expressed in its own Declaration but which the other

Party has expressed in its Declaration.”61 This would seem to be in keeping with the Pan-American

Rule, which later was reflected in Article 21 of the Vienna Convention, that a reserving state must

share the advantage that it is trying to preserve within the framework of its bilateral relations with

other parties to the treaty. In Interhandel, the Court turned this approach on its head, by essentially

limiting the benefit of the reservation to the other states, rather than the reserving state. The Court

went on to state that “Reciprocity enables the State which has made the wider acceptance of the

62Id. Interhandel, 1959 I.C.J. 6, 23 (July 6).

25

jurisdiction of the Court to rely upon the reservations to the acceptance laid down by the other Party.

There the effect of reciprocity ends. It cannot justify a State, in this instance, the United States, in

relying upon a restriction which the other Party, Switzerland, has not included in its own

Declaration.62 Seen against the backdrop of the Advisory Opinion effort to prevent reservations that

would contradict the “essential object of the treaty,” the Court would want to limit as much as

possible the natural tendencies of States to hedge their submission to the jurisdiction of the Court

when another State was trying to press its case.

UK/French Continental Shelf Arbitration

The 1956 Continental Shelf Convention allowed reservations, except for any restriction that

pertained to Articles 1 - 3 of the agreement. France ratified the Convention on July 30, 1965, adding

several specific reservations, to which the United Kingdom objected upon ratification in January of

1966. The arbitration panel had to decide between France’s argument that Article 6, to which it had

attached its reservations, was simply not in force between the two countries as a result of the UK’s

objection. Conversely, the UK argued that the reservation was not allowable and therefore the treaty

was in force as written.

The Arbitration panel found that the reservations themselves were allowable and that the

treaty was in force between the two countries since both had agreed to an optional protocol for

dispute resolution, and therefore had to find another route for resolving the differences between the

63The UK also stated that it did not intend to preclude entry into force between the two countries as a result ofthe reservations.

64D.W. Grieg, Reciprocity, Proportionality, and the Law of Treaties, 34 VA. J. INT’L L. 295, 322 (1994).

26

two. Although the United Kingdom would have to accept some form of reservation,63 as it was

aware that they were allowable under the terms of the Convention, France could not use Article 12,

the provision that allowed reservations in general terms as “a license to write its own treaty.” The

panel looked to Article 21 of the Vienna Convention and determined that under the circumstances

of one party objecting to the reservation of another, the treaty would not be in force between the two

to the extent of the reservation. This, of course, brings up the question of what objective an

objecting state could achieve by protesting a reservation if it did not want to take advantage of its

only remedy, precluding entry into force. In essence, the final legal effect of protesting and accepting

a reservation are the same, as long as the objecting state wants to maintain some level of obligation.

The game must therefore be played out before ratification. The objecting state can have

recourse by threatening to attach reservations to other provisions of the Convention that are

important to the reserving state in order to enhance its bargaining position. Another strategy would

be to invoke good faith in negotiation as a basis for rejecting the reservation and hope that the

reserving state backs down, at least as the reservation applies between the two nations.64

27

The Limits of Reciprocity and Emerging Problems in Treaty

Reservations

Heterogeneous States and Asymmetric States’ Interests: Ex-Ante Preclusion

of Reservations

States often find themselves with asymmetric treaty interests and, unlike treaties in which

it is unclear how and when states will benefit from the terms, such as agreement to submit to the

jurisdiction of the International Court of Justice, often the asymmetric interests of states are obvious

at the time of treaty ratification. This enables states to calculate how they and other nations will

benefit from the agreement. Once this veil of uncertainty about the effects of treaty terms is lifted,

then the costs and benefits of attaching reservations to the treaty become much clearer. In such

situations, states may face incentives for unilateral reservations, in spite of reciprocity constraints.

We suggest that the principle of reciprocity, while solving conflict situations characterized by a

symmetric Prisoners’ Dilemma structure, may by itself be incapable of correcting other strategic

problems. Whenever the conflict takes place along the diagonal possibilities of the game (such that

the obtainable equilibria are already characterized by symmetric strategies), the effect of a reciprocity

constraint will not alter the dynamic of the game.

In spite of the reciprocity constraint of Article 21 (1), states can find it valuable to introduce

reservations that impose asymmetric costs and benefits on the various participants.

Reciprocity constraints are, indeed, effective only in those cases that generate incentives for

unilateral defection. Figure (2) illustrates a situation where reciprocity is ineffective. The matrix

65In the classic Battle of the Sexes scenario, the husband wants to go to a sporting event and the wife to theopera, yet both want to spend time together. There is no uncertainty in this situation, yet also no solution that will avoidsome loss of enjoyment for one of the parties (either one will have to go to an unenjoyable event or both will have toforego the pleasure of each other’s company. Eric Rasmusen, Games and Information: An Introduction to Game Theory,2nd ed. 25-26 (1994).

28

depicts a Battle of the Sexes game,65 but the same conclusion would hold for a pure-conflict (i.e,

zero-sum) situation. Also in this illustration, for the sake of graphical clarity, we consider the

simplest scenario of two states faced with a ratification problem, although here too the results hold

in the more complex case of multilateral treaties, considered in the present paper. In Figure (2) we

illustrate the choices of two states faced with a treaty ratification problem. Recall that state 1 (the

column-mover) chooses between strategies I and II, yielding the payoffs marked on the right side of

each box. Likewise, state 2 (the row-mover) chooses between those two strategies, attempting to

maximize the payoffs marked on the left side of each box. For both states, strategies I represents a

choice of full ratification, while strategy II represents a choice of unilateral reservation.

The payoff matrix on the left shows the states’ optimal strategic choice in the absence of the

reciprocity constraint found in Article 21(1) of the Vienna Convention. Similar to a Battle of the

Sexes game, this mixed coordination and cooperation problem yields multiple Nash equilibria. The

payoff matrix on the right shows the effect of Article 21(1) on the optimal strategies of the parties.

The reciprocity constraint introduced by such rule eliminates the accessibility of asymmetric

outcomes, and compels the parties to take into account the effect of the opponent’s reciprocal choice.

Yet, Figure (2) illustrates the limits of the reciprocity, as both scenarios produce identical results,

unaffected by the presence of the reciprocity constraint.

29

Figure (2): A Case of Ineffective Reciprocity

This limitation on reciprocity to constrain the strategic action of states explains the

emergence of other legal mechanisms to prevent the unraveling of treaty terms due to unilateral

reservations attached at the time of treaty ratification. As discussed in the following sections, the

emergence of concepts such as “package deal” helps promote optimal levels of treaty ratification

when multiple states with substantial asymmetries in their interests are involved.

Asymmetric Reservations and the Concept of “Package Deal”

When, in the course of treaty negotiations, states discover they have asymmetric interests,

they have an opportunity to introduce reservations that, in spite of the reciprocity constraint of

Article 21 (1), would create asymmetric costs and benefits for the various participants. This

limitation in constraining the strategic action of states explains the emergence of the concept of

“package deal” to ensure ratification of treaties involving multiple states with substantially different

66Hugo Caminos, Progressive Development of International Law and the Package Deal, 79 AM. J. INT’L L. 871(1985).

30

underlying interests. Articles 309 and 310 of the Law of the Sea Convention offer an important

illustration of this concept.

For example, a state that has extensive coastlines may have a different substantive interest

in the definition of territorial water limits than states with coastlines of average length. Likewise, a

state with uniquely configured coastal contours may have different preferences than the majority with

respect to rules defining bays, straits, archipelagoes, and so on. Finally, geological configurations

of the Continental Shelf vary across regions, rendering the definition of uniform boundaries

problematic in a multilateral treaty, and thus vulnerable to unilateral reservations mechanisms.

“Package Deal” under Articles 309 and 310 the UN Convention on the Law of the Sea

Until the late nineteenth century, the law of the sea operated on the basis of customary norms,

but it too was touched by the trend towards codification at the end of the 1800s that continued into

the twentieth century. Milestones in this process included the Hague Codification Conference of

1930, the Geneva Conventions of 1958 and finally the United Nations Convention of the Law of the

Sea, which ended with a Convention text in 1982 that is widely seen as reflecting existing customary

rules pertaining to the law of the sea.66

Although the Convention itself may reflect customary international law, the negotiations

themselves reflected an important shift towards treaty drafting by consensus. The negotiations were

therefore necessarily drawn out as agreement had to be reached on a large number of extremely

complex and technical issues. The General Assembly set the tone with a resolution recognizing that

67Hugo Caminos, Progressive Development of International Law and the Package Deal, 79 AM. J. INT’L L. 871,874 (1985).

68Department of Foreign Affairs, Report of the Australian Delegation, 9th Session, 3d UN Conference on theLaw of the Sea (1980). Page 25


70Bernard H. Oxman, The Third United Nations Conference on the Law of the Sea: the Ninth Session, 75A.J.I.L. 211, 248 and n.172 (1980).

71Reports of the United States Delegation to the Third United Nations Conference on the Law of the Sea, 449(M. Nordquist & C. Park eds. 1983)

31

the main issues, such as territorial waters, the continental shelf, and the ocean floor beyond national

jurisdiction are “closely linked together,” leading to the concept that they should all be treated as a

“package.”67 The Rules of Procedure enshrined this consensual approach.

The Final Clauses of the Treaty were seen as critical for preserving the integrity of the

Convention.68 A report of the Australian delegation noted that solution on the substantive issues and

agreement on the prohibition on reservations were linked, as states were not willing to give up the

latter until they were convinced that they had secured every advantage in the former.69 Although

states attempted to use the final clauses as a bargaining chip to secure favorable language in the

substantive provisions, there was an underlying understanding that, in the end, acceptance of the

treaty would have to be an all or nothing proposition.70 The United States was even more direct:

“Since the Convention is an overall ‘package deal’ . . . . to permit reservations would inevitably

permit one State to eliminate the ‘quid’ of another State’s ‘quo.’ Thus there was general agreement

in the Conference that in principle reservations could not be permitted.”71

A 1979 President’s note outlining the discussion at an August 1 informal plenary also drew

the link between the substantive provisions of the treaty and states’ willingness to give up their right

to append a reservation. Describing the realization of the delegates that the question of reservations

72President’s Note, Informal Plenary on Final Clauses, FC/6 7 August 1979.

73The delegates had four options for their consideration: 1) no reservations 2) allow reservations only on specificprovisions of the treaty, thereby balancing the need for consensus with the rights under the Vienna Convention to applyreservations 3) designate a limited number of provisions to which reservations may be attached and 4) not include anyprovisions on reservation, allowing Article 19 of the Vienna Convention to be the default. A/CONF.62/L.13. Anothersuggestion was to preclude reservations for 25 years after the treaty went into force and then to hold a review conferenceto identify which provisions could be accepted as customary international law or integral parts of package deals.



32

was both “delicate” and “complicated,” the report captured the consensus that the “basic and

overriding policy” would be to preserve the “package deal” and that could be fatally undermined by

allowing a wide range of reservations.72 Discussion ensued on how best to achieve that objective.

A 1976 Report by the Secretary General listed four options for handling reservations.73 The informal

plenary discussed the possibility of allowing reservations under limited circumstances, although no

state specified to what provision it might attach a reservation.74 The current of the discussion

ultimately ran against allowing reservations, however. For instance, concern was raised about

permitting reservations “not incompatible with the treaty,” a relatively broad standard, because there

was no agreed mechanism for determining which reservations would meet that standard. Protecting

from reservation any provision that was “an essential part of the central package” raised the same

problem of determining which terms would fit into that category.75 Other arguments for not allowing

any reservations centered around the unique character of the Convention as a whole and a variety of

global policy considerations.

In the end, Ambassador Evensen, the chief drafter of the Final Clauses, followed the

Convention’s overall approach of negotiation by consensus to introduce a draft text of a one

paragraph prohibition on all reservations: “no reservations or exceptions may be made to this

7620 Va. J. Int’l. L. 347, 365 (1980); United Nations Convention of the Law of the Sea, Article 309, done Dec.10, 1982, U.N. Doc. A/CONF.62/122, reprinted in 21 I.L.M. 1261 (1982) [hereinafter Law of the Sea Convention]. LOS

77Statement of UNCLOS III President Tommy Koh, quoted in Hugo Caminos, Progressive Development ofInternational Law and the Package Deal, 79 AM. J. INT’L L. 871, 886 (1985).

78For instance, Tommy Koh, President of the Third Conference of the Law of the Sea, only alluded toreservations in his remarks encouraging signature of the treaty. Statements of other countries either indicated that, onbalance, the Convention promoted national interests, and so the lack of reservation provision was not a problem. JohnKing Gamble, The 1982 U.N. Convention on the Law of the Sea: A “Midstream” Assessment of the Effectiveness ofArticle 309, 24 SAN DIEGO L. REV 627, 630-31 (1987).

79John King Gamble, The 1982 U.N. Convention on the Law of the Sea: A “Midstream” Assessment of theEffectiveness of Article 309, 24 SAN DIEGO L. REV 627, 631 (1987).

80Statistics available at http://www.un.org/Depts/los/reference_files/status2001.pdf

33

Convention unless expressly permitted by other articles of this Convention.”76 This approach mirrors

the general agreement among the states that they would have to accept the good and bad of the

Convention because the “rights and obligations go hand in hand and it is not permissible to claim

rights under the Convention without being willing to shoulder the corresponding obligations.”77 It

does not appear that this approach precluded participation in the treaty itself because the question

of reservations were barely mentioned in the official declarations that were made after the

negotiations were concluded.78 Even the United States did not mention the reservation issue, in spite

of the fact that more flexibility might have induced the Reagan Administration to change its policy

and sign the Convention.79 Finally, 157 States signed the Convention, certainly a strong turn-out,

35 of which added declarations. The treaty entered into force on November 16, 1994 and currently

has 137 ratifications, 50 of which include some sort of declaration.80

Although the language of Article 309 prohibiting reservations mirrors the approach of the

treaty as a whole, the states did preserve the right to attach declarations and other indications of

national understanding of the treaty and its ramifications. This ability was then reflected in the

language of Article 310, which allows states to make declarations states explain how the Convention

81United Nations Convention of the Law of the Sea, Article 310, done Dec. 10, 1982, U.N. Doc.A/CONF.62/122, reprinted in 21 I.L.M. 1261 (1982) [hereinafter Law of the Sea Convention]. For a discussion of thesedeclarations, finding that about a dozen of the 146 declarations may, in fact, cross the line into de facto reservations, seeJohn King Gamble, The 1982 U.N. Convention on the Law of the Sea: A “Midstream” Assessment of the Effectivenessof Article 309, 24 SAN DIEGO L. REV 627,644 (1987).

82Statement by Tommy T.B. Koh, U.N. Press Release SEA/MB/1/Rev.1, Dec. 6, 1982, at 6.

83Statement by V.N. Martynenko, Chairman of the Ukrainian S.S.R. Delegation, made at the LOS ConventionPlenary Session of Dec. 7, 1982 at 3, quoted in John King Gamble, The 1982 U.N. Convention on the Law of the Sea:A “Midstream” Assessment of the Effectiveness of Article 309, 24 SAN DIEGO L. REV 630 (1987).

34

will mesh with “its laws and regulations . . . with the provisions of [the] Convention, provided that

such declarations or statements do not purport to exclude or to modify the legal effect of the

provisions of [the] Convention in their application to that State.”81 There was some concern that

Article 310 would be used as a vehicle for states to declare reservations to the treaty under another

label, thereby winning for themselves an advantage without the restraint that the principle of

reciprocity offers in a straightforward reservation. Where the admonition of the President of the

Convention was gentle,82 the warning of the delegate from the Ukrainian Soviet Socialist Republic

was blunt: “we are going to object categorically to the proposals aimed at amending by any pretext

the provisions of the Conventions. . . the Ukrainian S.S.R. will abstain from the declarations

provided for in Article 310 of the Convention. We expect the same approach from other

delegations.”83 Given that the republics of the then-Soviet Union were particularly sensitive to their

sovereign right to refuse to be bound by treaty provisions perceived not to be in their national

interest, the position of the Ukrainian S.S.R. is particularly noteworthy.

An analysis of the declarations themselves, done five years after the treaty was completed,

revealed that few of them could be interpreted as reservations in fact, if not in form, that is few

84John King Gamble, The 1982 U.N. Convention on the Law of the Sea: A “Midstream” Assessment of theEffectiveness of Article 309, 24 SAN DIEGO L. REV 630 (1987).

35

appeared to have the potential of changing the legal effect of the treaty itself.84 It appears that Article

310 fulfilled its purpose as a platform for national interpretations of the treaty, but that the basic

commitment held to preserving the terms of the treaty in their entirety, showcasing the general

understanding that individual state interest on specific items would have to be set aside in favor of

the consensual comprehensive regime that had been worked out.

The package deal solution in essence returned the approach to reservations to the Pre-World

War II norm of the unanimity rule. Although the solution was voluntary, the result was the same:

each state had to accept the treaty as written and no latecomer to the agreement could change the

treaty as applied to itself by appending a reservation. States were willing to give up the ability to

append reservations because it was easy to do the cost-benefit analysis of treaty ratification and

quantify how the material situation of each state would improve by adhering to the terms of the

Convention. Therefore states are willing to give up unilaterally the right to make reservations in

order to gain a clear national advantage, providing solution to asymmetric strategic problems in

which reciprocity alone is not a sufficient disincentive for states to attach reservations to a treaty in

order to maneuver for unilateral advantage. This solution, however, is dependent on states’

voluntary actions; in the arena of human rights conventions, which are also characterized by

asymmetric interests and negotiating positions, states are not willing to give up the Vienna

Convention right to make reservations. The treaties themselves are therefore vulnerable to erosion

and the international community still needs a mechanism to encourage adherence to this kind of

international agreement.

85Curtis Bradley & Jack L. Goldsmith, Treaties, Human Rights, and Conditional Consent, CHICAGO PUBLICLAW AND LEGAL WORKING PAPER NO. 10 at 3 (2000).

86Barcelona Traction, Light & Power Co. (Belg. v. Spain), 1970 I.C.J. 3 (Feb. 5).

87Barcelona Traction, Light & Power Co. (Belg. v. Spain), 1970 I.C.J. 3, 32 (Feb. 5). In the latter case, a statemust demonstrate a basis for a right to bring action against another state in a dispute.

88Barcelona Traction, Light & Power Co. (Belg. v. Spain), 1970 I.C.J. 3, 32 (Feb. 5).

36

Limitations on Reciprocity: Human Rights Conventions

Although reciprocity is a fundamental principle of international law that governs treaty

relations between states, it does not form the foundation for human rights treaties. These

conventions do not represent agreements among states but often amount to unilateral declarations

by governments that they are willing to abide by international norms in their dealings with their own

citizens.85 As a result the mechanism of reciprocity is not a direct factor in their implementation.

The International Court of Justice drew this distinction in Barcelona Traction, in considering

whether Belgium had the right to press for compensation for shareholders of a Canadian company

who were Belgian nationals.86 The ICJ distinguished between the “obligations of a State towards the

international community as a whole,” and those arising out of bilateral relations between states.87

The court listed as examples of such universal obligations “outlawing of acts of aggression, and of

genocide, . . . [and enforcement of ] rules concerning the basic rights of the human person, including

protection from slavery and racial discrimination.”88 Because of the importance of these objectives,

they are “obligations erga omnes” and all states have the legal authority to bring action against other

states who violate them. As a result, the basic reciprocal nature of treaty rights breaks down and

nations ratify, or encourage enforcement, of treaties based on political calculations and value

89See e.g. the Nuclear Tests cases and the East Timor Case, in which Australia and Portugal, respectively,asserted the right to represent the international community in a dispute.

90Rebecca Cook, Reservations to the Convention on the Elimination of All Forms of Discrimination AgainstWomen, 30 VA. J. INT’L L. 643 (1990).

91See Lord McNair, The Law of Treaties, 169 (1961) (arguing that the best solution is to address explicitly whatkind of reservations will be allowed in the treaty itself); 1 Oppenheim’s International Law 583 at 1204 (Sir RobertJennings & Sir Arthur Watts, 9th ed. 1992) (theorizing that human rights treaties are designed to take on a life of theirown so that eventually the terms of the treaty will be accepted as an international norm, in which case the reservationwill become invalid.)

37

judgements, rather than the desire to maintain the status quo through recognition of bilateral rights

and responsibilities.89

Because of this essential difference, the circumspection with which countries approach

reservations in the context of contractual treaties does not hold in the arena of human rights

conventions. For instance, the Convention on the Elimination of Discrimination Against Women,

although negotiated and adopted very quickly, came into force with at least 23 of 100 states attaching

a total of 88 significant reservations.90 While some commentators have offered strategies for

forestalling reservations to human rights conventions,91 the basic fact remains that human rights

treaties do not represent agreements among states but rather are unilateral declarations by

governments that they are willing to abide by international norms in their dealings with their own

citizens. A human rights treaty often nets the signing state little in concrete benefits, but rather is an

assumption of obligations for purposes of image or prestige. The mechanism of reciprocity is simply

not a factor; the state is rather acquiescing in accepting absolute obligations.

By their very nature, human rights treaties touch on sensitive cultural issues, meaning that

states may hesitate to object to a reservation for fear causing unnecessary tension in existing bilateral

92For instance, when criticisms of the reservations that some Islamic states attached to the Convention to EndAll Discrimination against Women was portrayed as a Western attack on Islamic states, other countries from thedeveloping world rallied to the reserving states, although initially it appeared that they had concerns about thereservations as well. Belinda Clark, The Vienna Convention Reservations Regime and the Convention on DiscriminationAgainst Women, 85 AM. J. INT’L L. 281, 284 (1991).

93Elena A. Baylis, General Comment 24: Confronting the Problem of Reservations to Human Rights Treaties,17 BERK. J. INT’L LAW 277, 312 (1999).

94John Quigley, Symposium: the Ratification of the International Covenant on Civil and Political Rights:Article: the International Covenant on Civil and Political Rights and the Supremacy Clause, 42 DEPAUL L. REV. 1287,1289-90 (1993).

95Not only do the terms of the Vienna Convention favor the reserving state, as objecting states’ only options are1) not to accept the reservation, meaning that the provision is not in force between them or 2) declare the entire treatynot in force between reserving and objecting state, but theoretically a state could attach a reservation to an obligationthat it would otherwise have under international norms, thereby potentially circumventing an obligation that it wouldotherwise have under customary international law. See Daniel N. Hylton, Note, Default Breakdown: The Vienna

(continued...)

38

relationships.92 The focus is on a state’s individual actions and the extent to which it meets

international standards, or fails to do so, so that other states generally do not have a vested interest

in closely policing how closely a reserving state is respecting the letter of the convention.93 Other

states may object to a reservation, but the tension really lies between the ratifying state and the

international body overseeing the convention.

As a result, states generally do not hesitate to attach reservations to ratifications of human

right treaties. For example, the United States ratified the Covenant on Political and Civil Rights but

attached five reservations, five understandings, and four declarations to the 12 Articles of the

agreement, essentially insulating itself from any obligation to change its laws to comply with the

agreement.94 Where reciprocity forced states to assess the pluses and minuses of attaching

reservations in a contractual setting, acting as a general deterrent for reservations, this mechanism

is absent in the human rights arena, leading to obvious abuses of the system and reservations that

arguably violate the Vienna Convention prohibition against reservations that are contrary to the

object and purpose of the treaty.95

95(...continued)Convention on the Law of Treaties: Inadequate Framework on Reservations, 27 VAND. J. TRANSNAT’L L. 419, 441(1994).

39

Searching for a Solution: Curbing Reservations Without Reciprocity orVoluntary Unanimity Rule

Because of the ambivalent feelings states have toward human rights treaties, and the desire

for universal acceptance of norms of international behavior to preserve basic human rights, the

reservations regimes for normative conventions have been very lax in order to encourage

participation. International organizations have had to take the lead in devising ways to curb the use

of reservations and so fill the gaps caused by reservations to human rights treaties. In particular, the

United Nations Human Rights Committee has attempted to maintain for itself the right to determine

whether a reservation is compatible with the object and purpose of the four covenants that make up

the foundation of international human rights law, in essence creating an enforcement mechanism.

The General Assembly appointed a Special Rapporteur to consider, among other things, if a special

reservations regime should be established for human rights treaties.

Comment 24

In reaction to the high number of reservations to treaties related to human rights, the United

Nations Human Rights Committee assigned itself the responsibility of reviewing the reservations

to determine if they were in harmony with the object and purpose of the treaty and, if they were not,

disallowing the reservation while still holding the country in question accountable for compliance

with the treaty as a whole. This approach would help redress the imbalance inherent in the the

Vienna Convention, which simply does not enforce the objectionable provision between the

96The sole exception was a decision by the European Court of Human Rights, Belilos v. Switzerland, thatadopted the Committee’s logic in holding that Switzerland’s reservation to the European Convention on Human Rightsconcerning rights to a fair trial was invalid both because it was not sufficiently specific and because Switzerland had notfollowed proper procedures. The Court then held Switzerland to the Convention obligations as written, in spite of thefact that it had clearly not intended to be bound to the letter of the agreement. Belilos v. Switzerland, European Courtof Human Rights, Docket no. 20/1986/118/167 at http://hudoc.echr.coe.int/hudoc. The Plaintiff had been arrested andfined by a Police Board for taking part in an unauthorized demonstration. She argued that this action violated theEuropean Convention on Human Rights because the same municipal authority had charged, judged, and fined her inviolation of the due process rights afforded her under the convention.

97The Report of the International Law Commission on the Work of the Forty ninth Session, 12 May - 18 July1997, UN GAOR, 52nd sess., PP 75 -79, U.N. Doc. A/52/10 (1997). Available at:http://www.un.org/law/ilc/reports/1997/97repfra.htm

40

reserving and objecting state, essentially imposing the will of the reserving state on the other party.

Other than the shadow that a reserving state casts on an aspect of human rights law that another state

may value highly, non-reserving states are not directly affected by a reservation and have no leverage

to prevent it.

The obvious drawback to the Committee’s approach is that it violates state sovereignty and

the consensual basis of international treaty law because the Committee is essentially enforcing a

treaty against a state in spite of its expressed unwillingness to take on that obligation. Because the

Committee was contradicting this basic premise of international law, its approach met with a great

deal of protest and its declaration of a right to review reservations has never been tested.96

Rejection of a Revised Vienna Convention

Also in response to concerns about the high number of reservations to human rights treaties,

the General Assembly appointed a Special Rapporteur to consider whether the Convention itself

should be changed to protect the integrity of human rights treaties. The Report of the International

Law Commission97 affirmed the basic framework of the Vienna Convention and rejected the idea

of having special rules for human rights treaties as no compelling argument had been put forward

98 Specifically he rejected the idea of exempting human rights treaties from the Vienna Convention regime forthe following reasons:(a) The Vienna regime was designed to be universal and, in fact, is derived from a ruling on a human rights treaty(Genocide Convention);(b) No state or international body, include the Human Rights Committee in its Comment 24, had challenged theapplicability of the Convention to human rights treaties and the majority of such treaties contained specific provisionsoutlining how reservations would be handled, providing further clarity. The Report of the International Law Commissionon the Work of the Forty ninth Session, 12 May - 18 July 1997, UN GAOR, 52nd sess., PP 75, 76 U.N. Doc. A/52/10(1997). Available at: http://www.un.org/law/ilc/reports/1997/97repfra.htm

99The Report of the International Law Commission on the Work of the Forty ninth Session, 12 May - 18 July1997, UN GAOR, 52nd sess., PP 77, U.N. Doc. A/52/10 (1997). Available at:http://www.un.org/law/ilc/reports/1997/97repfra.htm

41

on which to base such an exception. He rather found that the lacunae and the ambiguities of the

Vienna regime that caused concern in the human rights context were also applicable to contract-type

treaties as well.98

The Special Rapporteur suggested that the “package deal” solution might ameliorate the

problem of excessive reservations. As human rights treaties also are negotiated under asymmetric

conditions among states, expressly limiting the opportunity to make reservations in the treaty itself

and carefully defining the object and purpose of the treaty to forestall incompatible reservations

would certainly help resolve the problem, assuming that the political will is there for such an

agreement. The Special Rapporteur also pointed to facilitating mediation and negotiation between

reserving and objecting states and continued monitoring for compliance with the Vienna convention

by human rights bodies as important tools for ensuring treaty compliance.99

Conclusion

Our study of the history and evolution of the law of treaty reservations has revealed

conflicting policy goals. On the one hand, allowing unilateral reservations at the time of signature

or ratification facilitates broad participation in major international treaties. On the other, the

100The actual language reads: “application of the treaty in its entirety is an essential condition of the consentof each [state] to be bound” Vienna Convention on the Law of Treaties, Art. 20 (2), concluded May 23, 1969, enteredinto force Jan. 22, 1980, 1155 U.N.T.S. 331.

101 The language of Article 20 (2) indeed indicates that the dominance of goals unity over broad participationcan be inferred “from the limited number of negotiating States” in the original treaty negotiation.

102 Vienna Convention on the Law of Treaties, Art. 20 (3), concluded May 23, 1969, entered into force Jan. 22,1980, 1155 U.N.T.S. 331.

42

unconstrained introduction of unilateral reservations risks corroding the unity and cohesiveness of

multilateral treaties, reducing the net benefits of treaty participation for potential signatory states.

These conflicting goals explain some of the salient features of reservations section of the

Vienna Convention, such as provisions dealing with inadmissible reservations (Article 19) and the

enumeration of reservations that fall outside the default acceptance rule of Article 20(4). Article 20

(2)100 demonstrates that, in general, the pressing need for unity and cohesiveness over the need for

broad participation in the treaty agreement.101 Likewise, the need for unity and cohesiveness are

paramount for treaties that create international organizations, since the introduction of unilateral

reservations would likely impede the ability of the organization to function under uniform rules. This

explains the solution in Article 20 (3), which requires “the acceptance of the competent organ of that

organization” to accept any unilateral reservation before it can become effective.102

The exceptions carved by the Vienna Convention to the default rules governing unilateral

treaty reservations create the possibility of a large number of situations in which states would choose

to make reservations in an uncoordinated way, leading to negative results. Although the great

majority of cases covered by Articles 19-21 of the Vienna Convention favor the reserving state, it

is striking that the number of reservations attached to international treaties is relatively low in spite

of that natural advantage. In this paper we have tried to explain this phenomenon by positing that

Article 21 (1) of the Vienna Convention establishes an effective reciprocity constraint on the

43

uncoordinated reservation choices of states: if a state wants to exempt itself from a treaty obligation,

it must be willing to let other nations escape that same burden as well.

The economic model of reciprocity identifies the strengths and weaknesses of the Article

21(1) solution. The problematic results of most strategic interactions stem from the fact that players

can only select strategies: outcomes are beyond the control of any individual player and are generated

instead by the combination of strategies which each player selects. The reciprocity constraint

introduced by Article 21(1) eliminates this problematic feature of the game by preventing

asymmetric combinations of strategies. Under Article 21(1), players know that by selecting a

strategy they are actually determining the outcome of the game. The incentives for unilateral

reservation are substantially reduced because the reciprocity constraint transforms a situation of

unilateral reservation into one of reciprocal reservation with mutual losses for all states. In symmetric

strategic problems, the expected costs and benefits of alternative rules are the same for all group

members and each has an incentive to agree to a set of rules that benefits the entire group, thus

maximizing the expected return from the treaty relationship.

However, the game-theory analysis of reciprocity under Article 21 reveals that such

mechanisms only provide a solution to the symmetric strategic problems, such as when states enter

into the negotiations with similar interests or when the way the treaty will affect states’ future

relationship is sufficiently unclear as to make their position statistically symmetrical. This analysis

thus unveils the limits of reciprocity in situations where states have asymmetric interests and so have

reason to introduce unilateral reservations in spite of the automatic reciprocity effect of Article

103 Clearly, the problem of opportunistic pursuit of states’ idiosyncratic interests will be minimized by the factthat states generally act as long-lived players, faced with a long horizon of repeat international interactions. In such anideal world of long-term international relations, states may have incentives to refrain from engaging in opportunisticreservation strategies. Yet, such ideal conditions may be disrupted by the action and short-sighted interests of states’governments.

104See above under Section XX, our discussion of the Genocide Convention Advisory Opinion, which pointsout the inherent contradiction between the aims of a liberal reservations regime and the needs to preserve a strong globalcondemnation of genocide.

44

21(1)(b). In such cases, erosion of treaty integrity may be inevitable unless the parties explicitly

preclude reservations in the treaty itself.103

This analysis further explains some additional peculiarities related to international

reservations. Human right treaties have a much higher rate of unilateral reservations than other

categories of treaties because concerns for broad treaty participation are paramount. This calls for

a liberal reservations regime which makes it easy for states to ratify human rights conventions. Yet

states’ interests are often asymmetric, and a liberal approach to reservations often frustrates the need

to preserve a strong global condemnation of human right violations. The different formative process

of such conventions impedes the equalizing mechanism of reciprocity, leading to unilateral

declarations of a state’s intentions concerning the treatment of its own citizens. Furthermore, human

rights conventions are quite peculiar because they obligate states to benefit third parties, thereby

rendering the automatic reciprocity effect of reservations less effective than usual, if not actually

counterproductive. The wide range of asymmetric interests of states in the face of human rights

protection, coupled with the automatic reciprocity effect of Article 21(1)(b), risks creating a multiple

unilateral reservations at the direct expense of a strong and uniform condemnation of human right

violations.104 In this scenario, the players have an irreconcilable clash of values and there is no

unique equilibrium point. Reciprocity does not offer a way out of the dilemma. In the face of a

unilateral reservation of one state, it would hardly benefit the other non-reserving states to have the

105 See Id.

45

same “right” to deny human right protection under similar circumstances. The search must continue

for an effective mechanism to induce states to adhere to multilateral treaty obligations, and yet

refrain from introducing piecemeal reservations, even when specific aspects of the treaty may not

be optimal from the point of view of every state.105

Documents

article 21 revised.prn - Scalia Law School | Scalia Law School · articulated in the Havana Convention on the Law of Treaties in 1928,10 it provided for three levels of reciprocal